NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 30 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50372
Plaintiff-Appellee, D.C. No.
5:19-cr-00151-DSF-3
v.
CARLOS ROMERO-CORICHE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted November 19, 2020
Pasadena, California
Before: PAEZ and VANDYKE, Circuit Judges, and IMMERGUT,** District
Judge.
Concurrence by Judge VANDYKE
Defendant-appellant Carlos Romero-Coriche (Romero) was charged in an
eleven-count indictment for his role in an alleged conspiracy to transport and
harbor undocumented immigrants in Southern California for financial gain.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Karin J. Immergut, United States District Judge for the
District of Oregon, sitting by designation.
Following a jury trial, Romero was convicted on all eleven counts. On appeal,
Romero challenges his conviction on Counts 2 through 11 and his sentence. We
have jurisdiction under 28 U.S.C. § 1291. We vacate in part, affirm in part, and
remand.
1. Romero argues that Counts 2 through 11 of the indictment were
duplicitous and that the district court’s jury instructions failed to remedy that error,
violating his Sixth Amendment right to a unanimous jury verdict. We agree.
“Where a defendant fails to object to an indictment as duplicitous before
trial and fails to object to the court’s jury instructions at trial, we review for plain
error.” United States v. Arreola, 467 F.3d 1153, 1161 (9th Cir. 2006). Romero did
not object to the indictment or the district court’s jury instructions. We therefore
review his challenge to the jury instructions for Counts 2 through 11 for plain
error.1
“Plain error is (1) error, (2) that is plain, and (3) that affects substantial
1
The government’s argument that Romero waived the jury instruction claim is
unpersuasive. The government concedes that we may review a challenge to the
jury instructions for plain error. See Arreola, 467 F.3d at 1161. Romero
challenged both the indictment and jury instructions in his opening brief. Thus,
while the indictment duplicity claim was waived under Federal Rule of Criminal
Procedure 12(b)(3), the claim as to the jury instructions is not waived. See, e.g.,
United States v. Guerrero, 921 F.3d 895, 898 (9th Cir. 2019) (per curiam); United
States v. Technic Servs., Inc., 314 F.3d 1031, 1039-40 (9th Cir. 2002), overruled
on other grounds by United States v. Contreras, 593 F.3d 1135 (9th Cir. 2010) (en
banc) (per curiam).
2
rights.” United States v. Depue, 912 F.3d 1227, 1232 (9th Cir. 2019) (en banc)
(quoting United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009)). If those
three prongs are satisfied, “the reviewing court has the discretion to grant relief so
long as the error ‘seriously affects the fairness, integrity, or public reputation of
judicial proceedings.’” Id.
The government concedes, and we agree, that the first two prongs are met.
Counts 2 through 11 of the indictment were duplicitous because each count
charged a completed transportation or harboring offense and the corresponding
attempt offense. In United States v. Ramirez-Martinez, 273 F.3d 903 (9th Cir.
2001), overruled on other grounds by United States v. Lopez, 484 F.3d 1186 (9th
Cir. 2007) (en banc), this court held that an indictment was duplicitous when one
count charged a defendant with transporting and attempting to transport under the
same statute at issue in this case, 8 U.S.C. § 1324(a)(1)(A)(ii). Id. at 913-15.2 And
the district court failed to remedy the indictment with an augmented or specific
unanimity instruction. Id. at 915. The district court therefore erred, and our prior
holding in Ramirez-Martinez makes the error plain. See Depue, 912 F.3d at 1232,
1234.
2
Counts 2 through 6 charged Romero with transporting, and attempting to
transport, five undocumented immigrants for the purpose of financial gain under 8
U.S.C. §§ 1324(a)(1)(A)(ii), (a)(1)(B)(i). Counts 7 through 11 charged Romero
with harboring, and attempting to harbor, the same five undocumented immigrants
for the purpose of financial gain under 8 U.S.C. §§ 1324(a)(1)(A)(iii), (a)(1)(B)(i).
3
The error also affected Romero’s substantial rights. As we have previously
stated, and as the government acknowledges, “the strength of the evidence is
beside the point in the duplicity context.” Ramirez-Martinez, 273 F.3d at 915.
And when there is a “genuine possibility” that “different jurors voted to convict on
the basis of different facts establishing different offenses,” United States v. Lapier,
796 F.3d 1090, 1097 (9th Cir. 2015), the “failure to give a specific unanimity
instruction [is] plain error violating [the defendant’s] ‘substantial right to a
unanimous jury verdict as granted by Article III, § 2, and the Sixth Amendment of
the United States Constitution.’” Id. at 1098 (citation omitted) (holding that the
lack of a specific unanimity instruction was plain error warranting reversal when
evidence tended to show multiple conspiracies instead of the single conspiracy
charged in the indictment).
Romero’s “substantial right to a unanimous jury verdict” was violated
because the record shows a “genuine possibility” of juror confusion. Id. First,
Counts 2 through 11 were plainly duplicitous. Second, in light of the trial
evidence, jurors could have found Romero guilty of attempting to transport or
harbor the undocumented immigrants, or of completing those offenses. Third, the
district court’s jury instructions did not sufficiently distinguish, given the
circumstances, between attempt and the completed offenses, nor provided a
specific or augmented unanimity instruction for those crimes. Fourth, the
4
government’s closing argument conflated the two crimes. Because there was a
genuine “risk that different jurors voted to convict on the basis of different facts
establishing different offenses . . . the district court was required to give a specific
unanimity instruction sua sponte.” Id. at 1097. Its failure to do so affected
Romero’s substantial rights. Id. at 1098; see Ramirez-Martinez, 273 F.3d at 915.
We therefore have “discretion to grant relief so long as the error ‘seriously
affects the fairness, integrity, or public reputation of judicial proceedings.’”
Depue, 912 F.3d at 1232 (quoting Hammons, 558 F.3d at 1103). “An error may
‘seriously affect the fairness, integrity or public reputation of judicial proceedings’
independent of the defendant’s innocence.” United States v. Olano, 507 U.S. 725,
736-37 (1993); Rosales-Mireles v. United States, 138 S. Ct. 1897, 1906 (2018)
(explaining that focusing “on principles of fairness, integrity, and public
reputation” recognizes “a broader category of errors” than actual innocence). Such
relief may be granted when it is “plausible” that the error affected the verdict. See
United States v. Johnson, 979 F.3d 632, 637 (9th Cir. 2020); Johnson v. United
States, 520 U.S. 461, 470 (1997).
“[A] conviction notwithstanding a genuine possibility of jury confusion and
risk of a nonunanimous verdict seriously affects the fairness and integrity of
judicial proceedings because it jeopardizes [the defendant’s] constitutional rights.”
Lapier, 796 F.3d at 1098. We conclude that the duplicitous indictment and lack of
5
a specific unanimity instruction concerning Counts 2 through 11 was plain error
warranting reversal, as it violated Romero’s “constitutional right to a unanimous
jury verdict.” Id. at 1093. The evidence against Romero was not so overwhelming
that we are convinced Romero “would have been convicted even if the jury had
been instructed properly.” United States v. Mancuso, 718 F.3d 780, 795, 795 n.9
(9th Cir. 2013). Rather, the trial evidence and the government’s closing argument,
which conflated the distinct crimes, show that some jurors could have convicted
Romero for the attempt crimes but found the elements of the completed crimes had
not been met, while others could have found the reverse to be true. Therefore it is
plausible that, had the proper unanimity instruction been given, the jury would not
have reached a unanimous verdict on those counts.
Accordingly, we vacate Romero’s conviction on Counts 2 through 11 and
remand for further proceedings.
2. Romero also argues that the district court erred by imposing a two-
level enhancement for obstruction of justice under U.S.S.G. § 3C1.1. The district
court imposed the enhancement after concluding Romero committed perjury and
attempted to obstruct justice as to material matters. We review de novo Romero’s
challenge to the enhancement. See United States v. Wahid, 614 F.3d 1009, 1016
(9th Cir. 2010), abrogated on other grounds by Henderson v. United States, 568
U.S. 266 (2013).
6
Specifically, Romero argues that his testimony about a familial relationship
with two of the undocumented immigrants was not material. See United States v.
Johnson, 812 F.3d 757, 761 (9th Cir. 2016) (stating that the district court must find
the defendant (1) gave false testimony, (2) on a material matter, (3) with willful
intent to apply a perjury enhancement). But Romero’s theory of the case at trial
was that he did not receive a financial benefit for transporting those two
undocumented immigrants—an element of the alleged offenses—because they
were his family members. Although other evidence, including other parts of his
testimony, tended to show that Romero did receive such a benefit, that does not
make his initial statements immaterial. The jury was tasked with deciding whether
Romero received a financial benefit. Jurors could have credited some parts of
Romero’s testimony, such as statements concerning his relationship with two of
the undocumented immigrants, while ignoring or discounting others. Therefore,
his testimony regarding the familial relationship remained relevant to a “subsidiary
issue under consideration.” United States v. Thomas, 612 F.3d 1107, 1123 (9th
Cir. 2010) (quoting United States v. McKenna, 327 F.3d 830, 839 (9th Cir. 2003)).
The district court did not err in applying the enhancement.3
VACATED in part, AFFIRMED in part, and REMANDED.
3
In light of our disposition, we need not address Romero’s other arguments.
7
FILED
United States v. Romero-Coriche
19-50372 DEC 30 2020
MOLLY C. DWYER, CLERK
VANDYKE, Circuit Judge, concurring. U.S. COURT OF APPEALS
I concur in the majority decision, as required by circuit precedent. See, e.g.,
United States v. Savage, 67 F.3d 1435, 1439 (9th Cir. 1995) (“we review the jury
instructions for plain error even though [defendant] failed to object to the
instructions below”), partially abrogated on other grounds by United States v. Van
Alstyne, 584 F.3d 803, 813 (9th Cir. 2009). I write separately to emphasize that
our precedent makes little sense, particularly given how we treat Rule 12
forfeitures in other contexts.
Rule 12 requires that certain objections “must be raised by pretrial motion,”
and that if a criminal defendant misses that deadline, “the motion is untimely” and
thus forfeited unless that untimeliness is excused for “good cause.” Fed. R. Crim.
P. 12(b)(3), (c)(3). A challenge to a duplicitous indictment, or an attempt to
suppress evidence, are among the prosecution errors that Rule 12 requires be
challenged by pretrial motion. See id. at 12(b)(3)(B), (C).
With respect to, for example, a motion to suppress evidence for a claimed
Fourth Amendment violation, our caselaw is clear: either bring it pretrial or it is
forfeited (absent a showing of good cause for the failure). See, e.g., United States
v. Guerrero, 921 F.3d 895, 898 (9th Cir. 2019). Our duplicitous indictment
jurisprudence starts out the same way. See, e.g., Savage, 67 F.3d at 1439 (“Savage
1
did not object to [duplicitous] defects in the indictment before trial. Therefore, he
has waived his right to raise an objection to the form of the indictment.”). But then
it gives back with the right hand what the left hand took away, by allowing a
criminal defendant to do what Romero-Coriche does here: raise a plain error
challenge to the jury instructions that arguably did not “correct” the duplicitous
charging for the first time on appeal under the Sixth Amendment. See id.
(“Although Savage waived his right to raise the duplicity problem, we note that
Savage has a right, under the Sixth Amendment, to a unanimous jury verdict.…
Because a substantial right is at issue, we review the jury instructions for plain
error even though Savage failed to object to the instructions below.”). And as this
case demonstrates, a criminal defendant will typically prevail on a plain error
challenge if the indictment was, in fact, duplicitous.
Our effective repudiation of Rule 12’s requirements in the duplicitous
indictment context makes little sense, for at least two reasons. First, our reliance
on the fact that “a substantial … Sixth Amendment … right” is at issue in cases
like this, id., hardly distinguishes duplicitous indictment cases from suppression
cases, unless one thinks the Sixth Amendment is somehow more “substantial” than
the Fourth. Compare Fed. R. Crim. P. 12(b)(3)(B)(i) with id. at 12(b)(3)(C).
Second, the main purpose of Rule 12’s pretrial motion requirement is to eliminate
criminal defendants’ incentive to keep silent about a pretrial defect, roll the dice on
2
the first trial, and then get a redo if they are convicted. Cf. Davis v. United States,
411 U.S. 233, 241 (1973) (“If defendants were allowed to flout [Rule 12’s] time
limitations, ... there would be little incentive to comply with its terms ... [and]
tactical considerations would militate in favor of delaying the raising of the claim
in hopes of an acquittal, with the thought that if those hopes did not materialize, the
claim could be used to upset an otherwise valid conviction ....”). Yet our
duplicitous indictment caselaw encourages precisely that; assuming Romero-
Coriche or his counsel knew the indictment in this case was possibly duplicitous,
under our caselaw they had no incentive to raise it pretrial, and every incentive to
wait and challenge it on appeal. It is hard to see how that is consistent with Rule
12’s “consequences of not making a timely motion.” Fed. R. Crim. P. 12(c).
3